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In the area of matrimonial law there is a fair amount of consensus that child-custody cases are the most difficult for attorneys to handle and for judges to decide. There is a lot at stake. A decision on the manner in which a child is raised and by whom is obviously of great consequence to both the child and the parents. These cases often present a conflict between two parents who are of fairly equal suitability (those in which one parent is clearly the better custodian are usually resolved prior to judicial adjudication). Most significantly, these disputes are difficult to resolve in the legal arena because they are in fundamental ways very different from the type of disputes that courts are generally called upon to resolve. Looking outside the legal system for assistance In the first instance, the relevant factors relate to characteristics of a person as opposed to an evaluation of an event. Most legal rules require a determination of facts related to some event and are therefore “act-oriented.” These disputes are, however, “person-oriented,” making the attitudes, dispositions and capacities of each of the parties relevant to the outcome. Judges are less comfortable evaluating attitudes and personality traits, especially as they pertain to parenting. In addition, most adjudication involves a determination of past acts or an event and the application of a rule of law that determines the consequences of the past act. Child-custody determinations, however, using the best-interests standard require individualized predictions: With whom will this child be better off in the years to come? Proof of what happened in the past is relevant only to the extent that it assists the court in deciding what is likely to happen in the future. How does one predict how a child’s best interest will be served? Furthermore, should the focus be on the short-term best interests or the long-term best interests, as these may dictate different results. Also, unlike most other disputes, the reaction of the “losing” party is also relevant as that party will continue to have a relationship with both the “winner” and the child. Given these challenges, it is no wonder that judges and litigants look to people outside the legal system for assistance. Because these disputes often focus on the need to evaluate and predict human behavior, psychologists and others who specialize in these matters are often called upon to assist. Most often this assistance takes the form of a forensic evaluation. These evaluations can be done by an expert appointed by the court or the parties may hire their own experts to conduct evaluations that can then be introduced into evidence. If the parties hire their own consultants, they may use them in various ways. The consultants may review reports submitted by others and help the attorney to prepare for in-court examinations. They may also be used as peer reviewers assessing the adequacy of an appointed expert’s report and testimony. For instance, the consultant may question the validity of some of the instruments or techniques used by the evaluator in conducting the investigation. Although this peer review may be helpful to the attorney, the actual testimony of the consultant on this issue is less likely to be particularly persuasive. This is due to the fact that the consultant has not had the benefit of interviewing all the parties nor is he or she bound by the professional guidelines set for professional evaluators who will ultimately render an opinion. An expert can also be appointed by the court. There is no question that the evaluations completed by the appointed expert often carry a great deal of weight. When a judge appoints an expert to provide a recommendation, it is not very likely that he will ignore the recommendation. The evaluations are also often eagerly anticipated by both parents as they can provide leverage for one or the other to push for a settlement of the case. Because these evaluations are so influential, important questions must be considered about their use. What weight should they be given? What standard should be used to govern their admissibility? Most importantly, should mental health experts be permitted to testify on the “ultimate question” of who should get custody or when a child should see a parent? Increasingly, the validity of these evaluations as “expert testimony” that speak to the ultimate issue is being called into question. Some commentators, including those from the mental health field, make a very persuasive case for the exclusion of forensic psychological assessment on the ultimate questions presented in a disputed child-custody case on three grounds. One, there are simply no reliable or valid instruments for predicting how a child will adjust under a future set of circumstances. Second, the “best-interest standard” that is used by the courts is not a psychological construct but rather a legal and socio-moral one. In virtually every jurisdiction, a child’s mental health or adjustment is only one factor a court must consider under the relevant statute. Therefore the judge should not, in effect, abrogate his or her responsibility to make a legal determination of custody. Finally, given the paucity of empirical data upon which a recommendation on the ultimate question could be based, such testimony is unlikely to meet the Daubert standard for admissibility of scientific expert testimony. Given the significant impact that an evaluation can have on child- custody cases, attorneys must carefully reflect on how to approach the issues. First, attorneys involved in a disputed child-custody case should carefully consider whether expert psychological testimony is necessary in a particular case. If there has been no history of mental health treatment for the child or the parties or any indication of some psycho-pathology, the evaluation might just add additional costs in terms of both expense and time. Automatic appointments in all child-custody cases should be questioned. Sometimes automatic appointments are perceived by litigants and the bar as a way of postponing decisions that have to be made by the courts under their parens patraie responsibility. It sometimes appears as if the courts making such automatic appointments are looking for a way of prolonging proceedings, perhaps hoping that the parties will find a resolution with the assistance of the professional. But that is not the province of an independent custodial evaluator. If an evaluation is ordered, there are several other considerations. First, the court order appointing a forensic examiner should be very specific. The order should indicate the specific issues that are to be addressed with the understanding that the evaluator will not be making a recommendation on the ultimate issue. There are areas of inquiry where an independent examination may be helpful. For instance, the psychologist could be asked to consider the way each of the children relates to each parent in terms of any special educational or health needs of the child and how each parent addresses those issues. It should be made clear that the evaluator is to conduct an investigation and not act as a “referee” for disputes arising between the parents during the pendency of the investigation. The order appointing the expert should also indicate how reports are to be submitted to the court. If they are to be introduced as evidence, the parents’ rights to access and objection must be considered. Counsel should be wary of open-ended appointments The order appointing the investigator should also address the time frame in which the investigation is to be completed. Counsel should be wary of open-ended appointments that may suggest that the appointment is being used to delay the decision in the hope that the parents will settle the case. The order should also address the hourly fee of the expert along with an indication that the fee shall not be increased without further court order. The investigator should be directed to present monthly (or periodic) time statements to the court, to the parents’ lawyers and to the child’s guardian. Allocation of the fee payments for the expert should be addressed in the order. Aside from providing important information short of a recommendation on the ultimate issue, mental health experts can be used in some very helpful ways. For instance, many states require parents to submit a parenting plan that is a detailed description of the manner in which parents intend to continue caring for their children after divorce. Because children’s reaction to change and separation from a parent is based not just on individual differences but also on their developmental stage, psychologists have a lot to offer parents in terms of suggestions related to developmental processes. Furthermore, by the very nature of its subject matter, a parenting plan is going to have to be responsive to change. Again alerting parents to the need to be flexible as their children age would be most useful in avoiding future conflicts. Interviewing the child to ascertain those individual differences would allow a psychologist to work in the best interest of that child by assisting the parents themselves in making good decisions. Rather than being put in a position of having to assist a judge who relies so heavily on the report because of a lack of knowledge of the child or the family, the psychologist would be in the position of assisting the appropriate decision-makers, the parents who are in a superior position to judge what is in a child’s “best interest.” Mary Kay Kisthardt is a professor at the University of Missouri-Kansas City School of Law. She can be reached via e-mail at [email protected]. Barbara Handschu is a solo practitioner with offices in New York City and Buffalo, N.Y. She can be reached via e-mail at [email protected].

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